end of year-definitions

Question 1

what is arbitration-model answer

Answer 1

Arbitration is where two parties voluntarily agree to have their dispute decided by an arbitrator or a panel of arbitrators. The
decision to use arbitration will be in writing and can be taken before or after a dispute arises.
Many commercial contracts have a clause stating that if a dispute arises the parties will settle their dispute by arbitration. This
clause is called a Scott v Avery clause.
Arbitration is governed by the Arbitration Act 1996. The aim of the Act is to obtain a fair and impartial resolution without
unnecessary delay and cost. The date and time of the hearing will be agreed by the parties in consultation with the arbitrator.
The parties in dispute are free to agree the number of arbitrators, this can range from a sole arbitrator to a panel of two or three. The parties can name the arbitrator or, if necessary, the court will appoint one.
Arbitration hearings can be formal or informal. The parties will agree the most suitable procedure for their case. This may be in the form of a paper arbitration where the arbitrator receives the arguments in paper form and no hearing takes place or the parties might decide that a more formal hearing is needed. In the first instance they will submit all the relevant documentation to the arbitrator. The arbitrator will later hear any oral submissions. This type of hearing will be like a court hearing and can include the calling of witnesses. The same court procedures as are available in legal proceedings can be used to ensure witnesses attend.
At the end, the arbitrator will come to a binding decision called an award. The arbitration award can be enforced in the same manner as a court judgement. This arbitration decision is final; however, it is open to challenge on the grounds of serious irregularity in proceedings or on a point of law. A good example of when arbitration is used is in holiday cases. The Association of British Travel Agents is a trade body offering arbitration services to those who have experienced problems with holidays booked through ABTA members.

Question 2

how was negligence first defined

Answer 2

Negligence was defined in the case of Blyth v
Birmingham Waterworks Co. (1856) by Baron Alderson
as “failing to do something which the reasonable
person would do or doing something which the
reasonable person would not do.’ According to this
definition, negligence can come from either an act or
an omission.

Question 3

Describe the newspaper article showing a claim in negligence for personal injuries from an accident

Answer 3

A man was badly injured on a there park ride and is
seeking up to £250,000 in compensation.
Mark Simpson was catapulted out of a boat on
the water chute at Wicksteed Park, breaking his ankle
and injuring his knee, shoulder and wrist. He later
developed a clot on the lungs and has been unable to
find work da to the long-term effects of his injuries.
The park has admitted liability, but the High Court
will decide how much Mr Simpson is entitled to.
Mr Simpson was enjoying a family day out at the
park when he decided to go on the water chute, an
open-top boat which speeds down a ramp into a lake
and then floats until it is stopped by a rope. As the
boat was being winched back to the ramp, it became
caught on a steel walkway.
Mr Simpson alleges that he was urged by park
staff to climb out of the boat but was catapulted
in the air as he tried to do so, as the boat moved
violently towards the ramp. The company is accused of negligence. Mr
Simpson claims that the staff falled to slacken the
tension on the rope while he got out, failed to inspect
the winch mechanism and failed to notice the danger
he was in.
He also claims the company negligently failed
to warn him of the dangers of getting off in the
circumstances, required him to get off when it was
unsafe, and exposed him to a ‘trap’, it is alleged.

Question 4

What will the claimant have to prove for negligent cases

Answer 4

In any negligence claim the claimant will have to
prove the defendant was at fault and to blame for the
injuries or damage.

Question 5

How is the level of fault shown

Answer 5

The level of fault that has to be
shown is on the balance of probabilities - it is more
likely than not that the defendant’s fault caused the
injuries or damage.

Question 6

How do you show a sufficient burden of proof

Answer 6

The burden of proving this fault is
1.
on the claimant. If the case goes to court, the claimant
will have to provide evidence to show the fault. The
evidence could be from experts, oral evidence of
witnesses who saw the incident or medical reports of
the injuries. If the claimant cannot present sufficient
evidence to prove his case he will be left without
compensation, even if he is suffering physical injury or
damage to his property.

Question 7

In negligence how is the person who caused the injury or damage liable

Answer 7

he owes the claimant a duty of care
he breaches this duty and
the breach causes reasonably foreseeable injury or
damage.

Question 8

Describe duty of care

Answer 8

The idea of a duty of care in the tort of negligence is
to establish a legal relationship between the parties.
It has developed through judicial precedent

Question 9

What is the neighbour principle

Answer 9

Neighbour principle - the person who is owed a
duty of care by the defendant. It is not the person
living next door, According to Lord Atkin, it is anyone
you ought to have in mind who might potentially be injured by your act or omission.

Question 10

What case set out the neighbour principle

Answer 10

Donoghue v Steve don

Question 11

Describe the case of Donoghue v Stevenson

Answer 11

(1932)
Mrs Donoghue went to a cafe with a friend. The friend
bought her a drink of ginger beer and ice cream. The
bottle of ginger beer had dark glass so that its contents
could not be seen. After drinking some of it, Mrs
Donoghue poured the rest out and then saw that it
contained a dead (and decomposing) snail. Because of
the impurities in the drink she suffered both physical
and mental injuries.
She wanted to claim compensation for her injuries.
As she had not bought the drink she could not use the law of contract to sue the café or the manufacturer.
Instead she sued the manufacturer in negligence
claiming that they were at fault in the manufacturing
process and that they owed her a duty of care,
In the House of Lords Lord Atkin set the test for
when a person would be under a duty to another. He said: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour!
He went on to explain this by saying: Who then, in law, is my neighbour? Persons who are
‘so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected when I am directing my mind to the acts or omissions in question.

Question 12

What is the caparo test

Answer 12

This was a three part test that replaced the neighbour principle

Question 13

Describe the caparo test

Answer 13

3 parts
Was damage or harm reasonably foreseeable?
Is there a sufficiently proximate close relationship between the claimant and the defendant ?
Is it fair, just and reasonable to impose a duty ?

Question 14

What case arose the caparo test

Answer 14

Caparo v Dickman 1990

Question 15

What’s the Caparo v Dickman

Answer 15

Caparo v Dickman (1990)
The claimant company wanted » take over another
company - Fidelity Limited. They looked at the
statutory accounts prepared for Fidelity by the
defendant, which showed a profit. Based on these
books they decided to take over Fidelity. After
completing the purchase they looked at the detailed
books, which showed a loss. They sued the defendant
for their loss.
The House of Lords set the three-stage test for
owing a duty of care. They decided that the defendant
did not owe the claimants a duty of care as the
accounts were prepared for Fidelity and for statutory
reasons.

Question 16

what is the law now on duty of care

Answer 16

• Legal principle: the Caparo test does not have to be strictly applied in
  every case, instead the courts should look to existing statutes and
  precedents and identify duties through analogy. Where there is an
  existing or analogous duty that can be applied, the courts do not
  need to consider the Caparo test, as such consideration has already
  been determined, recognising the duty. Only in novel duty situations
  does this need to be considered.
• Additionally, public authorities are subject to the same liabilities in
  tort law as private individuals. They are under a duty not to cause the
  public harm via their own actions, but are not under a duty to prevent
  harm from third parties. The Police are not exempt from claims in
  negligence.

Question 17

What is necessary for negligence

Answer 17

Damage or reasonably foreseeableharm
Whether the injury or damage is reasonably
foreseeable depends on the facts of the case. An
example of this is the case of Kent v Griffiths (2000).

Question 18

What is the Kent v Griffins case (2000)

Answer 18

Kent v Griffiths (2000)
An ambulance was called to take the claimant who
was suffering an asthma attack to hospital. Despite
repeated assurances by the control centre, and for no
obvious reason, the ambulance failed to arrive within
a reasonable time. As a result the claimant suffered a
respiratory arrest.
The court decided it was ‘reasonably foreseeable’
that the claimant would suffer further illness if the
ambulance did not arrive promptly and no good reason
was given why it failed to do so. A duty of care was
owed by the ambulance service when they initially
accepted the call and as they failed in this duty they
were liable to pay compensation.

Question 19

Describe proximity of relationship

Answer 19

Even if the harm is reasonably foreseeable, a duty of care
will only exist if the relationship between the claimant
and the defendant is sufficiently close or proximate. An
example of this is the case of Bourhilly Young (1943),.

Question 20

What is the case of Bourhill v Young

Answer 20

Bourhillv Young (1943)
A pregnant woman heard the sound of an accident as
she got off a tram. The accident was caused by a motor
cyclist who died in the accident. After a short while she
approached the scene of the accident and saw blood
on the road. She sufferechauch shock that she later gave
birth to a stillborn baby. She sued the relatives of the
dead motor cyclist. Under the neighbour test at the
time she had to prove that she was proximate, or close
to, the motorcyclist so that he owed her a duty of care,
The House of Lords decided that he could not
anticipate that if he was involved in an accident, it
would cause mental injury to a bystander and so he
did not owe Mrs Bourhill a duty of care.